Pending
and referred are Motions to Dismiss filed by each Defendant
in this case (Document Nos. 7, 8, 9[1] and 13). Having considered
the claims and allegations of Plaintiff, who is proceeding
pro se, the Motions to Dismiss, Plaintiffs responses
to those motions, and the applicable law, the Magistrate
Judge RECOMMENDS, for the reasons set forth below, that
Defendants' Motions to Dismiss (Document Nos. 7, 8, 9 and
13) be GRANTED and all Plaintiffs claims in this case be
DISMISSED WITH PREJUDICE.

Background

This
case was filed by Plaintiff Crizzeer Kennedy pro se
("Kennedy"); as a pro se plaintiff, his
pleadings will be liberally construed. Alderson v.
Concordia Par. Corr. Facility,848 F.3d 415, 419 (5th
Cir. 2017). In his Complaint, filed on June 29, 2017, against
Judge William Harmon, Attorney Brian Coyne, Clerk Kaye
Jameson, and the Houston Police Department, Kennedy complains
about a series of events that commenced in 1980, with his
"warrantless arrest" lacking in probable cause and
based on alleged racial profiling, and essentially ended in
1985 or 1986 when his conviction for possession of an illegal
weapon was affirmed and he did not further pursue any state
post-conviction relief. Kennedy's claims in this case,
which he premises, on the one hand, on 42 U.S.C. § 1983,
and on the other hand, as being a post-conviction writ of
habeas corpus, arise out of his arrest in 1980, his guilty
plea which resulted in a ten year term of deferred
adjudication, the revocation of his probation in 1984 and the
resultant sentence of three years incarceration, and his
purported efforts from 1984 through 1986, to challenge that
conviction with state post-conviction applications for writ
of habeas corpus. With respect to Defendant Houston Police
Department, Kennedy maintains that he was unconstitutionally
arrested without a warrant and based solely on his race. As
for Defendant Judge William Harmon, Kennedy alleges that he
"lied" about the pendency of Kennedy's state
application for writ of habeas corpus. Defendant Brian Coyne,
Kennedy alleges, was his attorney when he pled guilty to the
weapons offense in 1980 and was ineffective for failing to
challenge his arrest as not being based on probable cause.
Finally, Kennedy alleges that Defendant Kaye Jameson, the
court reporter at his probation revocation hearing, did not
preserve the record of that hearing. In the "Relief
Sought" section of his Complaint, Kennedy alleges as
somewhat a summary, the following:

Thus, I would allege that I have been victimized by
ineffective assistance of counsel on the original case by
Brian Coyne, the probation hearing by Johnny Gill, and the
appellate procedures by Barbara Burnett. Additionally, I have
been denied my right to be heard for over 30 years by two
judges in the 178th District Court which resulted
in not being able to exhaust state remedies. Moreover, I have
been egregiously violated on my transcript testimony during
the probation hearing by either the assistant district
attorney or the clerk of the court for erasing my 20-day
violation statement to the visiting judge. More importantly,
I was originally violated by being racially profiled in 1980
by an illegal warrantless search of my black and green
briefcase and the convenient loss of the police report by the
Houston Police Department. I would like to be found innocent
of this crime because I believe wholly that there were
concerted efforts by authorities of Harris County while
acting under color of law to keep me from getting before
judge Carl O. Bue in 1985 who heavy-handedly ruled
consistently against Harris County for violations of the
24-hour magistrate to determine a neutral determination of
probable cause.

Complaint (Document No. 1) at 5-6.

Each
Defendant filed a Motion to Dismiss Kennedy's claims.
Defendant Judge William Harmon maintains in his Motion to
Dismiss (Document No. 7) that he has absolute judicial
immunity, that Kennedy has not stated a claim against him for
which relief is available because he cannot find Kennedy
"innocent, " and that Kennedy cannot maintain a
viable federal habeas corpus action to challenge his weapons
conviction from 1984 against anyone in any event because he
is not "in custody, " which is a jurisdiction
requirement for habeas corpus relief. Defendant Houston
Police Department argues in its Motion to Dismiss (Document
No. 8) that it lacks the capacity to be sued, that
Kennedy's claims are barred by the applicable statute of
limitations, and that Kennedy cannot state a viable §
1983 claim related to his arrest in 1980 because the weapon
charge was never dismissed in his favor, as is required under
Heck v. Humphrey,512 U.S. 477 (1994) for a viable
damages claim under § 1983. Defendants Coyne and Jameson
seek dismissal of Kennedy's claim(s) against them
(Document Nos. 9 & 13) for failure to state a claim and
as barred by the applicable statute of limitations.

§
1983 Claims

Kennedy's
claims premised on 42 U.S.C. § 1983 are all subject to
dismissal.

42
U.S.C. § 1983 provides that any person who, under color
of state law, deprives another of "any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceedings for
redress...." "Rather than creating substantive
rights, § 1983 simply provides a remedy for the rights
that it designates." Johnston v. Harris County Flood
Control Dist.,869 F.2d 1565, 1574 (5th Cir.
1989), cert, denied, 493 U.S.1019 (1990). To state a
claim under § 1983, a plaintiff must (1) allege a
violation of rights secured by the Constitution or laws of
the United States, and (2) demonstrate that the alleged
deprivation was committed by a person acting "under
color of state law". See Bass v. Parkwwod
Hosp., l8OF.3d234, 24l (5th Cir. 1999);
Gomez v. Toledo,446 U.S. 635, 340 (1980) ("By
the plain terms of § 1983, two-and only two-allegations
are required in order to state a cause of action under that
statute. First, the plaintiff must allege that some person
has deprived him of a federal right. Second, he must allege
that the person who has deprived him of that right acted
under color of state or territorial law.").

Here,
Defendant Judge William Harmon has, as he has asserted,
absolute judicial immunity for any action he took as the
district judge of the 178th District Court of
Harris County, Texas. As set forth by the Fifth Circuit Court
of Appeals in Ballard v. Wall,413 F.3d 510, 515 (5
th Cir. 2005):

Judicial immunity is an immunity from suit and not just from
the ultimate assessment of damages. Mireles v. Waco,502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).
"Although unfairness and injustice to a litigant may
result on occasion, ' it is a general principle of the
highest importance to the proper administration of justice
that a judicial officer, in exercising the authority vested
in him, shall be free to act upon his own convictions,
without apprehension of personal consequences to
himself.' " Id. at 10, 112 S.Ct. 286
(citation omitted). Judicial immunity is not overcome by
allegations of bad faith or malice and "applies even
when the judge is accused of acting maliciously and
corruptly." Id. at 11, 112 S.Ct. 286 (internal
quotation marks and citation omitted) (emphasis added).
"It is the Judge's actions alone, not intent, that
we must consider." Malina v. Gonzales, 994 F.2d
1121, 1125 (5th Cir.1993). Notwithstanding the
aforementioned, judicial immunity can be overcome in two sets
of circumstances: (1) "a judge is not immune from
liability for nonjudicial actions, i. e., actions
not taken in the judge's judicial capacity"; and (2)
"a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all
jurisdiction." Mireles, 502 U.S. at 11-12, 112
S.Ct. 286 (citations omitted).

Because
Kennedy asserts in his Complaint that Defendant Harmon was
acting as a judge when he misrepresented the status of
Kennedy's state application for writ of habeas corpus,
and because it was within his purview as the judge of the
178th District Court of Harris County, Texas, to
respond to state applications for writ of habeas corpus,
Defendant Harmon has absolute judicial immunity from the
claims Kennedy asserts against him.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;As for
Defendant Houston Police Department, as argued in its Motion
to Dismiss, it does not have the capacity to sue or be sued.
That is because it is a subdivision of the City of Houston,
see Houston Municipal Code Article II. - POLICE
DEPARTMENT &sect; 34-21, and has no separate legal existence.
Darby v. Pasadena Police Dep&#39;t,939 F.2d 311,
313 (5th Cir. l99l)("In order for a plaintiff to sue a
city department, it must &#39;enjoy a separate legal
existence.&#39;"). Kennedy&#39;s claims against the
Houston Police Department are therefore subject to dismissal
on that basis alone. Seee.g., Twine v. City of
Houston, No. H-08-1234, 2008 WL 4240157 *3 (S.D. Tex.
Sept. 10, 2008) (Houston Police Department dismissing claims
against Houiston Police Department for failure to state a
claim). ...

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